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Devisingh @ Udaysingh vs The State Of Madhya Pradesh on 13 July, 2018

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HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Appeal No 265/2012
Devsingh @ Udaysingh
Versus
State of Madhya Pradesh

————————————————————————————-
Shri P.L. Newalkar, learned counsel for the appellant.
Shri K. Pathak, learned Public Prosecutor for the State.
————————————————————————————-
JUDGMENT

( 13.07.2018)

The appellant has preferred the present
appeal against the judgment dated 25.01.2012 passed by
1st Additional Sessions Judge, Khargone, District
Khargone in Sessions Trial No. 166/2010, whereby the
appellant has been convicted and sentenced as under:

Conviction Sentence
Section Act Imprisonment Imprisonment
Fine in lieu of fine
363 IPC 3 years R.I. 1 month
Rs.1000/-
376(2)(Cha)
IPC 10 years R.I. 2 months
Rs.2000/-
506
IPC Rs.500/-

2. In short, the prosecution story is that on 11.4.2011
at about 10:00 am 9 years old daughter of the
complainant/ Parmilabai had gone to shop for purchasing
Sev Parmal (Snacks) when she did not come back then
she search her daughter, but she did not find, then
Parmilabai lodged a missing report of her minor
daughter at Police Chowki- Segaon. On 21.12.2009 at
about 19:30 pm, complainant/Parmilabai came to the

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police chowki, Segaon alongwith her missing daughter,
then SHO Abhay Tiwari recovered her. Parmila Bai
alleged that Devsingh was taken her daughter to the
shop alluring her to bring Sev Parmal (Snacks) then he
took her village, Dongargaon where he committed rape
upon her, during this prosecutrix tried to raise alarm,
however, accused-Devisingh threatened to kill her, so
that she could not say anything because of fear. After
that he took her to Khargone by bus while coming from
Dongargaon and from there he sat her on the bus sailed
to Segaon. Then prosecutrix reached her house on
21.12.2009. At that time blood was present on her skirt
and underwear. On the basis of information police
registered an FIR bearing crime No.236/2009 against
the accused- Devisingh under
Section 363,376, 506 of
I.P.C. Police sent the prosecutrix for medical examination
and recorded her statement on 22.12.2009. SHO Abhay
Tiwari had visited the place of occurrence and prepared
spot map. The accused was arrested on 08.07.2010 and
he was also sent for medical examination to community
health center, Segaon. Police seized the various article
received from the hospital and sent them to the forensic
science labortary, Rau. Police also obtained scholar
register of Primary School, Segaon regarding the age of
the prosecutrix. After completing the investigation, the
charge sheet was filed.

3. The appellant abjured his guilt. He took a plea that
he has been falsely implicated in the crime due to
previous enmity with the parents of the prosecutrix.
However, he has not examined any witness in his
defence.

4. In order to substantiate the charges the
prosecution examined 18 witnesses and considering the

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evidence adduced by the parties, trial court pronounced
the impugned judgment dated 25.01.2012 and convicted
the appellant for the offence under
Section 363, 376 (2)
(Cha) and 506 of
IPC and sentenced him as mentioned
above.

5.Learned counsel for the appellant argued at length
and submitted that the Trial court has not properly
appreciated the evidence adduced by the prosecution.
The material omissions and contradictions present in the
statements of the prosecution witnesses were ignored.
The prosecution could not prove the guilt of the
appellant beyond reasonable doubt inspite of that the
trial court has wrongly convicted the appellant.

6. To the contrary the learned counsel for the State
submits that after due appreciation of the evidence the
trial Court has found the appellant guilty of the aforesaid
offence which is not warranted any interference.

7. I have carefully perused the record and have
considered the rival contentions of the parties.

8. Parmila Bai (PW3) has deposed that the prosecutrix is
her daughter, who is aged about 9 years and at the time
of incident she was studying in class-3. Bhav Singh is
residing in her neighborhood. The accused- Devisingh
used to come to the house of Bhav Singh and during this
he kidnapped her daughter alluring to bring her Sev
Parmal (Snacks), when she did not come back then she
searched her daughter, when she did not find, then she
lodged a missing report to the Police Chowki, Segaon.
On the next day of the incident at noon her daughter
came back and she told her that accused-Devisingh was
taken her by alluring to bring Sev Parmal (Snacks), then
he had took her in a field situated at Village Ghenghawa,
where he committed rape upon her.

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9. Prosecutrix (PW1) has testified that she is studying
in class-3, she knows the accused who came to the house
of Bhav Singh, who is residing near to her house.
Accused allured her to bring Sev Parmal (Snacks) and
took her to Village Ghenghawa by bus, after reaching
there he had took her to a field where he committed
rape with her, during this he threatened her if she will
shout then he will kill her, then he had took her to village
Babri where they stayed at night. Next morning accused
brought her to Khargone from where, he sat her in the
bus, After reaching home, she narrated the story to her
mother.

10. Sunder Bai (PW6) also deposed that in the evening
of winter at about 06:00 pm, she was at courtyard of his
house situated at Village-Dabri, at that time accused-
Devisingh came there alongwith a girl aged about 8-9
years and asked her that whether this road goes to
Balakwada, then she replied him affirmative. Then he
had gone to the aforesaid road. After ½ hour he came
back and told her that the girl is afraid to go to that
road, then she asked the name and address of the
accused who informed her that he is residing at Village
Dongargaon and presently working as driver at village
Sendwa. Both of them stayed night in her house and next
day morning accused had gone with girl.

11. The first question for determination is as to what
was the age of the prosecutrix on the date when she was
alleged to have been raped

12.Manorama Bai (PW7) deposed that she is working as
a teacher in primary school Segaon and prosecutrix was
studying at class-3 in her school. As per the scholar
register of the school her date of birth is 03.03.2001
Nothing adverse has been come in her cross examination

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with respect to the age of prosecutrix.

13. With regard to verification of age ossification test
was also conducted and Dr. G.S. Mujalada (PW16) has
deposed that in the ossification test the age of the
prosecutrix was found about 8-9 years. This report is
also corroborated the age mentioned in the scholar
register (Ex.P9).

14. In the case of Jarnail Singh v. State of Haryana
reported in (2013) 7 SCC 263, the Supreme Court has
held as under:-

“22. On the issue of determination of age
of a minor, one only needs to make a
reference to Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules,
2007 (hereinafter referred to as the 2007
Rules). The aforesaid 2007 Rules have
been framed under
Section 68(1) of the
Juvenile Justice (Care andd Protection of
Childran) Act, 2000. Rule 12 referred to
hereinabove reads as under:

“12. Procedure to be followed in
determination of age: – (1) in every case
concerning a child or a juvenile in conflict
with law, the court or the Board or as the
case may be the Committee referred to in
rule 19 of these rules shall determine the
age of such juvenile or child or a juvenile in
conflict with law within a period of thirty
days from the date of making of the
application for that purpose.

(2) The court or the Board or as the
case may be the Committee shall decide
the juvenility or otherwise of the juvenile
or the child or as the case may be the
juvenile in conflict with law, prima facie on
the basis of physical appearance or
documents, if available, and send him to
the observation home or in jail.

(3) In every case concerning a child
or juvenile in conflict with law, the age
determination inquiry shall be conducted
by the court or the Board or, as the case
may be, the Committee by seeking
evidence by obtaining –

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(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;

(ii) the date of birth certificate
from the school (other than a play school)
first attended; and in the absence whereof;

(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(b) and only in the absence of either

(i), (ii) or (iii) of clause (a) above, the
medical opinion will be sought from a duly
constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the case
may be, the Committee, for the reasons to
be recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one year
and, while passing orders in such case
shall, after taking into consideration such
evidence as may be available, or the
medical opinion, as the case may be,
record a finding in respect of his age and
either of the evidence specified in any of
the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive
proof of the age as regards such child or
the juvenile in conflict with law.

(4) If the age of a juvenile or child or
the juvenile in conflict with law is found to
be below 18 years on the date of offence,
on the basis of any of the conclusive proof
specified in sub-rule (3), the court or the
Board or as the case may be the Committee
shall in writing pass an order stating the
age and declaring the status of juvenility or
otherwise, for the purpose of the Act and
these rules and a copy of the order shall be
given to such juvenile or the person
concerned.

(5) Save and except where, further
inquiry or otherwise is required, inter alia,
in terms of
section 7A, section 64 of the Act
and these rules, no further inquiry shall be
conducted by the court or the Board after

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examining and obtaining the certificate or
any other documentary proof referred to in
sub- rule (3) of this rule.

(6) The provisions contained in this
rule shall also apply to those disposed off
cases, where the status of juvenility has not
been determined in accordance with the
provisions contained in sub-rule (3) and the
Act, requiring dispensation of the sentence
under the Act for passing appropriate
order in the interest of the juvenile in
conflict with law.”

23. Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime. Therefore, in our considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix PW-6.

The manner of determining age
conclusively, has been expressed in sub-
rule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child
is ascertained, by adopting the first
available basis, out of a number of options
postulated in Rule 12(3). If, in the scheme
of options under Rule 12(3), an option is
expressed in a preceding clause, it has
overriding effect over an option expressed
in a subsequent clause. The highest rated
option available, would conclusively
determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or
equivalent) certificate of the concerned
child, is the highest rated option. In case,
the said certificate is available, no other
evidence can be relied upon. Only in the
absence of the said certificate, Rule 12(3),
envisages consideration of the date of birth
entered, in the school first attended by the
child. In case such an entry of date of birth
is available, the date of birth depicted

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therein is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or
a municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age
of the concerned child, on the basis of
medical opinion.”

15. As per Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007, the following
documents are required for determination of age :-

(a) (i) Matriculation or equivalent
certificates, if available; and in the
absence whereof;

(ii) date of birth certificate from
the school (other than a play
school) first attended; and in the
absence whereof;

(iii) the birth certificate given by
corporation or municipal authority
or a panchayat;

(b) and only in the absence of either

(i), (ii) and (iii) of clause a a above, the
medical opinion will be sought from a
duly constituted Medical Board, which
will declare the age of the juvenile or
child.

16. In the present case the school certificate of the
prosecutrix is available and as per the certificate the age
of the prosecutrix was about 9 years at the time of
incident. This is also substantiated from the testimony of
Parmilabai (PW3), mother of the prosecutrix and
ossification test report. Therefore, it is proved that the
prosecutrix was below 12 years on the date of incident.

17. Now the next question is that whether the

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appellant is guilty of committing rape upon the
prosecutrix ?

18. I have gone through the evidence of prosecutrix
(PW1), Parmilabai (PW3), Bablu (PW5) and Sunderbai
(PW6) and found that there is no material contradiction,
omission exaggeration or improvement in their
statement. They remained firm and consistent in their
cross-examination. Their statements are corroborated by
the medical evidence as well as FSL report and there is
no material available on record to demonstrate that
these witnesses are falsely implicating the appellant in
the offence. Therefore, the evidence of these witnesses
are found reliable and trustworthy. Thus, the trial Court
did not commit any illegality or perversity in relying
upon the testimony of the aforesaid witnesses.

19. From the aforesaid discussion, it is found to proof
that on the date of incident i.e.20.12.2009, the
prosecutrix was minor and having aged about 9 years.
Accused took her alluring to bring Sev Parmal (Snacks)
and after that he committed rape with her. Under these
circumstances, the trial Court has rightly convicted the
appellant for the offence under Section under
sections
363,
376, 506 of I.P.C. There is no substance in the
appeal filed by the appellant and there is no reason
warranting any interference in the impugned judgment
passed by the trial court. Consequently, appeal is hereby
dismissed.

20. The appellant is in jail. A copy of the judgment be
also sent to the trial Court along with its record for
information

(S.K.Awasthi)
Digitally signed by PRAVEEN KUMAR NAYAK
Judge.

Date: 2018.07.14 18:57:32 +05’30’

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(praveen)

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